In a press statement, the International Criminal Court (ICC) confirmed it had taken custody of former President Rodrigo Duterte, with the court’s chief prosecutor, Karim Khan, calling it “a crucial step in our continuous work to ensure accountability for the victims of the most serious crimes under ICC jurisdiction.” Duterte is the first former leader of an Asian country to be served an ICC arrest warrant. The ICC said its chamber, composed of three judges, had assessed material submitted by office of the prosecutor and found reasonable grounds to believe that Duterte is “individually responsible as an indirect co-perpetrator for the crime against humanity of murder, allegedly committed in the Philippines between November 1, 2011 and March 16, 2019.” (reference: The Guardian, March 13, 2025)
Was Duterte justifiably arrested?
Yes.
As a Professor of Public International Law and Constitutional Law for several years at a law school (I still do, with Administrative Law and Law on Public Officers as well as Local Government Law), here is an explanation why there is NO VIOLATION OF DUE PROCESS against Mr. Duterte:
Understanding Treaties as Law in the Philippines
When the Philippines signs and ratifies an international treaty, it doesn’t just become a piece of paper – it becomes part of Philippine law. This is a fundamental principle in our Constitution.
How Treaties Become Law
Under Article VII, Section 21 of the 1987 Philippine Constitution, international agreements require Senate concurrence. Once properly ratified, these treaties become part of the “law of the land” through the doctrine of incorporation enshrined in Article II, Section 2.
The Rome Statute and ICC Warrants
When the Philippines signed and ratified the Rome Statute (the treaty establishing the International Criminal Court), we agreed to be bound by its provisions and jurisdiction. Though the Philippines withdrew in 2019, actions during our membership remain under ICC jurisdiction.
Due Process Already Satisfied
Some argue that ICC warrants violate due process, but this overlooks a crucial fact: the treaty itself underwent extensive scrutiny before ratification:
– It was thoroughly reviewed by the executive branch
– It received concurrence from the Senate
– Its constitutionality was examined by the Supreme Court
This means the due process requirements were already satisfied at the time of ratification. When an ICC warrant is issued based on the Rome Statute, it operates within a legal framework that the Philippines has already accepted as valid and constitutional.
The implementation of an ICC arrest warrant is therefore not an arbitrary action but the application of a legal system that became part of Philippine law through proper constitutional processes.
Key Constitutional Principles at Work
The incorporation of treaties into Philippine law rests on several established legal doctrines:
1. Pacta Sunt Servanda: This principle, recognized in Article II, Section 2 of our Constitution, means “agreements must be kept.” Once the Philippines commits to a treaty, we are bound to honor it.
2. Doctrine of Incorporation: The Supreme Court has consistently upheld that treaties form part of the law of the land through automatic incorporation (G.R. No. 138570, Pharmaceutical and Health Care Association of the Philippines vs. Health Secretary Francisco T. Duque III).
Self-Executing vs. Non-Self-Executing Treaties
The Supreme Court distinguishes between treaties that are immediately enforceable and those requiring implementation legislation (Bayan Muna v. Romulo, G.R. No. 159618). The Rome Statute provisions on cooperation with ICC are considered self-executing.
Hierarchy of Laws
While treaties have the same status as statutes in the Philippines, our jurisprudence recognizes that they represent international commitments that cannot be unilaterally disregarded (Secretary of Justice v. Lantion, G.R. No. 139465).
These principles demonstrate that ICC warrants based on the Rome Statute operate within a constitutional framework that the Philippines has both formally accepted and incorporated into its legal system.
The header features a tragic image of a mother holding the lifeless body of her son, an innocent victim of the anti-drug campaign during the administration of Pres. Duterte. (credit: Global Commission on Drugs). This article first appeared in the author’s FB page on March 11, 2025.
About the author:
ANGEL R. OJASTRO III is a Professor at the Ateneo de Naga University College of Law and Senior Partner at Ojastro Savilla Savilla & Associates Law Office. He was Undersecretary, Housing and Urban Development Coordinating Council (HUDCC), Senior Consultant at World Bank in the Philippines, and Senior Policy Consultant at the National Anti-Poverty Commission. He studied Economics at Catanduanes State University.